Franklins Ltd v Penrith City Council

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CITATION: FRANKLINS LIMITED v PENRITH CITY COUNCIL and CAMPBELLS CASH & CARRY PTY. LIMITED [1999] NSWCA 134
FILE NUMBER(S): CA 40115/97
HEARING DATE(S): 23, 28 and 29 April 1999
JUDGMENT DATE:
13 May 1999

PARTIES :
FRANKLINS LIMITED v PENRITH CITY COUNCIL and CAMPBELLS CASH & CARRY PTY. LIMITED
JUDGMENT OF: Powell JA at 1; Stein JA at 2; Giles JA at 38
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S) : LEC 40136/96
LOWER COURT JUDICIAL OFFICER: Bignold J
COUNSEL: P.D. McClellan QC/B.J. Preston (Appellant)
M.G. Craig QC/A.E. Galasso (1st Respondent)
N.A. Hemmings QC (2nd Respondent)
SOLICITORS: Clayton Utz (Appellant)
Wilshire Webb (1st Respondent)
Allen Allen & Hemsley (2nd Respondent)
CATCHWORDS: Application challenging the validity of a development consent - draft Local Environmental Plan (LEP) designed to amend industrial zoning in Interim Development Order so as to permit 'warehouse/retailing' activities - s 65 certificate - making of LEP but in an amended form - redrafting of clause - whether in granting consent the Council failed to consider a requirement contained in the redrafted clause
ACTS CITED: Environmental Planning and Assessment Act 1979 (NSW); s 90
CASES CITED:
 Clifford v Wyong Shire Council (1996) 89 LGERA 240
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Parramatta City Council v Hale (1982) 47 LGRA 319
Sommerville v Dalby (1990) 69 LGRA 422
Craig v South Australia (1995) 184 CLR 163
Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8
Alec Finlayson Pty. Limited v Armidale City Council (1994) 84 LGERA 225
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Darling Casino Ltd v NSW Casino Control Australia (1997) 191 CLR 602
DECISION: Appeal allowed with costs

    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40115/97
    LEC 40136/96
                        POWELL JA
                            STEIN JA
                            GILES JA
    Thursday, 13 May 1999
    FRANKLINS LIMITED v PENRITH CITY COUNCIL and CAMPBELLS CASH & CARRY PTY. LIMITED

The appellant commenced proceedings in the Land and Environment Court challenging the validity of a development consent granted by the first respondent Council to the second respondent on 12 December 1994.

The Penrith City Council was the owner of land which Campbells Cash & Carry sought to acquire. The subject land was located in a Special Industrial 4(c) zone under Interim Development Order No 28 Penrith. The definition of ‘warehouse’ included in the IDO was such that Campbell’s proposed use of the premises was not permitted.

The Council sought to rezone the land and endorsed a report recommending that a draft Local Environmental Plan be prepared to amend the industrial zoning in IDO 28 so as to permit ‘warehouse/retailing’ activities. In May 1993 Council sent the draft LEP to the Department of Planning seeking the issue of a s 65 certificate. In June 1993 the Department rejected Council’s request. In October 1993 a new draft LEP was forwarded to the Department. A s 65 certificate was then granted and the draft LEP was exhibited. The LEP was then…

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Details
Case
[1999] NSWCA 134
Decision Date

CaseChat Overview and Summary

Franklins Ltd (the applicant) sought to challenge the validity of a development consent granted by Penrith City Council (the respondent). The dispute arose from the Council's decision to grant consent for warehouse/retailing activities, which was purportedly permitted by a draft Local Environmental Plan (LEP) intended to amend industrial zoning provisions within an Interim Development Order. The applicant contended that the Council failed to consider a specific requirement within a redrafted clause of the LEP when granting the consent. The matter was heard by the Court of Appeal of New South Wales, comprising Powell, Stein, and Giles JJA.

The central legal issue before the Court of Appeal was whether the Penrith City Council, in granting the development consent, had adequately considered a requirement contained within a redrafted clause of the LEP. This redrafted clause had been introduced after the initial draft LEP, and the applicant argued that the Council's decision-making process did not properly account for the implications of this amendment. The Court was therefore required to determine the legal effect of the redrafted clause and whether the Council's actions in granting consent were consistent with its obligations under the relevant planning legislation.

The Court of Appeal allowed the appeal, finding that the Council had indeed failed to consider the requirement contained in the redrafted clause. The reasoning focused on the importance of ensuring that development consents are granted in accordance with the operative planning instruments, including any amendments thereto. The Court held that the Council's failure to properly consider the amended clause rendered the development consent invalid. Consequently, the appeal was allowed with costs.

Orders

Orders of the court

Appeal allowed with costs

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